Madras High Court
A.Aline vs Union Territory Of Puducherry on 27 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.9565 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.9565 of 2021
A.Aline ... Petitioner
Vs.
1.Union Territory of Puducherry
rep. By its Secretary,
Home & Prison Department,
Puducherry – 605 001
2.The Chief Superintendent of Jail,
Central Prison,
Kalapet, Puducherry 605 014
3.The Member Secretary,
Union Territory of Puducherry
Legal Services Authority,
No.3, Lal Bahadur Shastri Street,
Puducherry 605 001
(R3 suo motu impleaded vide order
dated 14.06.2021 made in WP.No.9565
of 2021) ... Respondents
PRAYER: Writ petition is filed under Article 226 of the Constitution of India
to issue a writ of Certiorarified mandamus after calling for the records relating
to the order bearing reference No.800/UTPLSA/2017-18 dated 3 / 4 -8-2017
issued by the third respondent and to quash the same as being illegal, arbitrary
and unconstitutional and consequently direct the respondents to comply with
the provisions of Section 357-A of the Criminal Procedure Code and grant
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Page 1 of 20
W.P.No.9565 of 2021
victim assistance to the petitioner with all attendant benefits.
(prayer amended as per order dated 18.10.2023 in WMP.No.21027 of 2022 in
WP.No.9565 of 2021)
For Petitioner : Mr.C.K.Chandrasekkar
For Respondents
For R1 & 2 : Mr.K.S.Mohandass,
Public Prosecutor(Pondy)
ORDER
This writ petition has been filed to quash the order bearing
reference No.800/UTPLSA/2017-18 dated 3 / 4 -8-2017 issued by the third
respondent and consequently to direct the respondents to comply with the
provisions of Section 357-A of the Criminal Procedure Code and grant victim
assistance to the petitioner with all attendant benefits.
2. After filing the writ petition, the petitioner came to understand that
the request of the petitioner before the prison authorities was rejected by the
order dated 04.08.2017. Therefore, the petitioner filed petition to amend the
prayer and the same was allowed. Accordingly, the petitioner is challenging the
order dated 04.08.2017 passed by the third respondent and also seeking
direction to the respondents to comply with the provisions of Section 357A of
Cr.P.C and to grant victim assistance to the petitioner.
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3. The case of the petitioner is that she is one of the daughters of one,
Abhimannan Prakash, a life convict who was punished for having murdered
the petitioner and her sister's mother. In pursuant to the said crime, FIR was
registered in crime No.221 of 2003. In pursuant to the registration of FIR,
investigation was completed and filed final report and the same had been taken
cognizance in SC.No.11 of 2005 for the offence punishable under Section 302
of IPC. By the judgment dated 25.03.2009, he was convicted for the offence
punishable under Section 302 of IPC and sentenced him to life. Their mother
was murdered and their father is incarcerating imprisonment in Central Prison,
Kalapet. They were under the care and custody of their maternal grandmother
who also recently passed away. They came to know that a portion of wages in
the prison of their father is deducted for being paid to the victims affected by
the crime. Therefore, the petitioner and her sister being the victims, are entitled
to receive the said amount. Therefore, they approached the second respondent,
but of no avail. By an order dated 23.05.2017, they have to approach the court
as per Section 2(2) of Section 357A of Cr.P.C. to get victim assistance.
However, the petitioner approached the third respondent. Their claim was
rejected on the ground that the Puducherry Victim Assistance Scheme, 2012
came into force on 07.02.2013, whereas the claim made by the petitioner with
regard to the occurrence happened in the year 2003. Therefore, the scheme
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could not be invoked for ordering payment of assistance as it is barred. Further
stated that these very principles apply in the case of an amendment in a Statute.
If the amendment intends to create a substantial right or if it affects the vested
right, it shall ordinarily be prospective in nature though an amendment in the
procedural law like relating to form and limitation can be applied
retrospectively.
4. Therefore, the petitioner approached the Legal Services Authority
of this Court and the learned counsel Mr.C.K.Chandrasekkar has been
nominated to file this writ petition. He submitted that delay in filing is due to
genuine difficulties faced by the petitioner and her sister. Further, lack of funds
to conduct litigation is also one of the main reasons. The victim assistance is
part of Article 21 and right to life. It is guaranteed under Section 357A of
Cr.P.C. as well. Therefore, directing the petitioner to approach the court itself is
arbitrary and unconstitutional. In fact, the petitioner and her sister deposed
before the court of law against their father and he was convicted and claimed
compensation under Section 357A of Cr.P.C.
5. The second respondent filed counter, which revealed that the
provision under Section 357A of Cr.P.C. came into force only with effect from
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31.12.2009. The Puducherry Victim Assistance Scheme, 2012 came into effect
from 07.02.2013. The Puducherry Victim Compensation Scheme for Women
Victims / Survivors of Sexual Assault / Other crimes (hereinafter called as 'the
scheme') came into force only in the year 2019. Therefore, the claim made by
the petitioner was rightly rejected by an order dated 04.08.2017. That apart, it
was challenged after period of four years by way of this writ petition. Insofar as
the wages paid to the convict i.e. the father of the petitioner, he is working in
jail from 2009 to 2020 and he had earned gross wages to the tune of
Rs.3,01,125/-. After deduction of Rs.1,75,800/- (Upkeep fund/victim fund/
welfare fund), net payable wages are Rs.1,25,325/-. Thereafter, he had already
spent a sum of Rs.1,00,806/-. As per GO.Ms.No.25 dated 25.05.2001 and by
GO.Ms.No.9 dated 23.02.2012, deductions have been made in the wages inter-
alia towards victim compensation scheme and the total amount so far deducted
towards victim compensation scheme is Rs.96,160/-.
6. The learned counsel for the petitioner relied upon the judgment of
the Hon'ble Supreme Court of India in the case of Suresh Vs. State of
Haryana reported in (2015) 2 SCC 277, in which the Hon'ble Supreme Court
of India held as follows:
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The principles of victimology has foundations in Indian
constitutional jurisprudence. The provision on Fundamental
Rights (Part III) and Directive Principles of State Policy (Part
IV) form the bulwark for a new social order in which social
and economic justice would blossom in the national life of the
country (Article 38). Article 41 mandates inter alia that the
State shall make effective provisions for "securing the right to
public assistance in cases of disablement and in other cases of
undeserved want." So also Article 51A makes it a fundamental
duty of every Indian citizen, inter alia 'to have compassion for
living creatures' and to 'develop humanism'. If emphatically
interpreted and imaginatively expanded these provisions can
form the constitutional underpinnings for victimology.
9.2 However, in India the criminal law provides
compensation to the victims and their dependants only in a
limited manner. Section 357 of the Code of Criminal Procedure
incorporates this concept to an extent and empowers the
Criminal Courts to grant compensation to the victims.
*****
11. In India the principles of compensation to crime
victims need to be reviewed and expanded to cover all cases.
The compensation should not be limited only to fines, penalties
and forfeitures realized. The State should accept the principle
of providing assistance to victims out of its own funds....."
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48. The question then is whether the plenitude of the
power vested in the Courts Under Section 357 & 357-A,
notwithstanding, the Courts can simply ignore the provisions
or neglect the exercise of a power that is primarily meant to be
exercised for the benefit of the victims of crimes that are so
often committed though less frequently punished by the Courts.
In other words, whether Courts have a duty to advert to the
question of awarding compensation to the victim and record
reasons while granting or refusing relief to them?
24. The subject matter has been dealt with by experts
from over 40 countries in series of meetings and a document
has been developed in cooperation with United Nations Office
at Vienna, Centre for International Crime Prevention and the
compilation under the heading "Handbook on Justice for
Victims" which deals with various aspects of impact of
victimization, victims assistance programmes and role and
responsibility of frontline professionals and others to victims.
The South African Law Commission, in its "Issue Paper 7"
(1997) under the heading "Sentencing Restorative Justice:
Compensation for victims of crime and victim empowerment"
has deliberated on various relevant aspects of this issue.
14. We are of the view that it is the duty of the Courts, on
taking cognizance of a criminal offence, to ascertain whether
there is tangible material to show commission of crime,
whether the victim is identifiable and whether the victim of
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crime needs immediate financial relief. On being satisfied on
an application or on its own motion, the Court ought to direct
grant of interim compensation, subject to final compensation
being determined later. Such duty continues at every stage of a
criminal case where compensation ought to be given and has
not been given, irrespective of the application by the victim. At
the stage of final hearing it is obligatory on the part of the
Court to advert to the provision and record a finding whether
a case for grant of compensation has been made out and, if so,
who is entitled to compensation and how much. Award of such
compensation can be interim. Gravity of offence and need of
victim are some of the guiding factors to be kept in mind, apart
from such other factors as may be found relevant in the facts
and circumstances of an individual case. We are also of the
view that there is need to consider upward revision in the scale
for compensation and pending such consideration to adopt the
scale notified by the State of Kerala in its scheme, unless the
scale awarded by any other State or Union Territory is higher.
The States of Andhra Pradesh, Madhya Pradesh, Meghalaya
and Telangana are directed to notify their schemes within one
month from receipt of a copy of this order. We also direct that a
copy of this judgment be forwarded to National Judicial
Academy so that all judicial officers in the country can be
imparted requisite training to make the provision operative
and meaningful.
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7. Thus, it is clear that the victim is entitled for compensation on
taking cognizance of a criminal offence, to ascertain whether there is tangible
material to show commission of crime, whether the victim is identifiable and
whether the victim of crime needs immediate financial relief. In the case on
hand, the petitioner's father is an accused. Deceased is her mother i.e. the
husband murdered his wife. They gave birth to the petitioner and her sister. The
petitioner as well as her sister deposed before the trial court and based on their
deposition, their father was convicted to life sentence. Now he is incarcerating
imprisonment. Their mother was murdered by their father on 25.10.2003.
Thereafter, the crime was registered in crime No.221 of 2003 and after
completion of investigation, the investigation agency filed final report and the
same has been taken cognizance by the trial court and convicted their father for
the offence punishable under Section 302 of IPC and sentenced him to life. At
the time of crime, the petitioner as well as her sister were tender aged children.
They were taken care of by their maternal grandmother. Unfortunately, she also
died and now no one is there to take care of them. Thereafter, they made
application before the third respondent seeking compensation under the
Puducherry Victim Compensation Scheme for Women Victims / Survivors of
Sexual Assault / Other crimes, 2019 and Section 357 A of Cr.P.C. before the
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third respondent. The third respondent dismissed their claim only on the
ground that the claim is barred by limitation since the scheme itself was
introduced only on 07.02.2013 and the amendment under Section 357 of
Cr.P.C. came into force with effect from 31.12.2009.
8. In the case of Suresh Vs. State of Haryana reported in (2015) 2
SCC 277, the Hon'ble Supreme Court of India further recorded as follows:
1) UN Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, 1985, highlighting the
following areas:-
(i) Access to Justice and fair treatment;
(ii) Restitution;
(iii) Compensation;
(iv) Assistance.
2) Council of Europe Recommendation on the Position
of the Victim in the Framework of Criminal Law and
Procedure, 1985.
3) Statement of the Victims' Rights in the Process of
Criminal Justice, issued by the European Forum for Victims'
Services in 1996.
4) European Union Framework Decision on the
Standing of Victims in Criminal Proceedings.
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5) Council of Europe Recommendations on assistance to
Crime victims adopted on 14.6.2006.
6) 152nd and 154th report of the Law Commission of
India, 1994 and 1996 respectively, recommending introduction
of Section 357-A in criminal procedure code, prescribing,
inter-alia, compensation to the victims of crime.
7) Recommendations of the Malimath Committee, 2003.
9. Though Law Commission of India on its 152nd and 154th report of
the year 1994 and 1996 recommended introduction of Section 357A in
Criminal Procedure Code with regards to compensation to the victims of crime
and recommendations of the Malimath Committee in the year 2003, the
amendment in Criminal Procedure Code came into force only from 31.12.2009.
Therefore, the recommendation was made even in the year 1994 and 1996 by
the Law Commission of India and subsequently by the recommendation of
Malimath Committee in the year 2003. In fact, other countries implemented the
scheme as per their recommendations even before 1997.
10. The learned counsel for the petitioner also mainly relied upon the
judgment of the High Court of Kerala rendered in WP(C).No.7250 of 2014
dated 22.12.2020 in the case of District Collector, Alappuzha Vs. District
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Legal Service Authority, Alappuzha rep. by the Secretary, wherein it is held
as follows:
29. While interpreting Section 357A(4) Cr.P.C., this
Court cannot be oblivious of the agony stricken face of the
victim and the trauma and travails such victims have
undergone, especially when their offenders have not even been
identified or traced out or a trial conducted. The agonizing face
of the victims looms large upon this Court while considering
the question raised for decision.
30. With the aforesaid principles hovering over Section
357A(4)&(5) Cr.P.C., the provision ought to be interpreted in
such a manner that it benefits victims. If the said benefit could
be conferred without violating the principles of law, then courts
must adopt that approach. A substantive law that is remedial,
can reckon a past event for applying the law prospectively.
Such an approach does not make the substantive law
retrospective in its operation. On the other hand, it only caters
to the intention of the legislature.
31. In other words, when an application is made by a
victim of a crime that occurred prior to the coming into force
of Section 357A(4) Cr.P.C., a prospective benefit is given,
taking into reckoning an antecedent fact. Adopting such an
interpretation does not make the statute or the provision
retrospective in operation. It only confers prospective benefits,
in certain cases, to even antecedent facts. The statute will
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remain prospective in application but will draw life from a past
event also. The rule against retrospectivity of substantive law is
not violated or affected, merely because part of the requisites
for action under the provision is drawn from a time antecedent
to its passing. Merely because a prospective benefit under a
remedial statutory provision is measured by or dependent on
antecedent facts, it does not necessarily make the provision
retrospective in operation.
32. The above view is fortified by the decision in The
Queen v. The Inhabitants of St. Mary, Whitechapel (1848 12
QB 120) at 127, where Lord, Denman CJ stated that "a statute
is not properly called a retrospective statute because a part of
the requisites for its action is drawn from a time antecedent
to its passing". The observations in the decision in Master
Ladies Tailors Organisation v. Minister of Labour and National
Service (1950 (2) All ER 525) are also relevant. It was held at
page 527 that "the fact that a prospective benefit is in certain
cases to be measured by or depends on antecedent facts does
not necessarily make the provision retrospective". The above
referred, two English decisions, were relied upon by the
Supreme Court, in Sree Bank Ltd. (in liquidation) v. Sarkar
Dutt Roy & Co. (AIR 1966 SC 1953), while it was considering
the retrospective application of Section 45O of the Banking
Companies Act, 1949, (brought in by an amendment of 30-12-
1953, as per which the period spent on presenting and
pursuing a winding up petition can be excluded for
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determining the period of limitation to revive a time barred
debt).
33. In the judgment in Piyali Dutta v. State of West
Bengal and Others (2017 Cr.LJ 4041), the Calcutta High Court
held that Section 357A is time neutral, i.e, it does not
distinguish between victims of a crime happening before the
introduction of the section in the statute with those incidents of
crime happening post its introduction in the statute book. It
was also held that the section does not make any distinction
between victims on the basis of the time of occurrence of the
crime and also that, segregation on the basis of time, is
unacceptable and would militate against the right to equality
and equal treatment by the State guaranteed under the
Constitution of India.
11. As per the Puducherry Victim Compensation Scheme for Women
Victims / Survivors of Sexual Assault / Other crimes, 2019, Clause 16 deals
with limitation for claiming compensation. Accordingly, no claim made by the
victim under Section 357A sub-clause 4 of Criminal Procedure Code after a
period of three years from the date of occurrence or conclusion of the trial.
12. In the case on hand, though the petitioner and her sister repeatedly
made claim for compensation under the scheme, they applied on 21.06.2017
before the third respondent. However, the said limitation clause is not in tune
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with the provision under Section 357A(4) of Cr.P.C. and it would defeat the
provision itself. Law does not stipulate a time limit for completion of an
investigation. In some cases, the offender cannot be identified or traced and
even then, the investigation ought to be concluded. If the time limit of from the
date of crime is stipulated for preferring application, it will defeat the very
provision itself. Though the scheme provides an application for delay beyond 3
years considered by sufficient reasons, in the case on hand, there was no such
scheme or amendment came into force in the provision under Section 357 of
Criminal Procedure Code. Thus, it is clear from the above judgment of the
Hon'ble High Court of Kerala, wherein after referring various judgments, it is
held that a statute is not properly called a retrospective statute because a part of
the requisites for its action is drawn from a time antecedent to its passing. The
scheme and the amendment intend to create substantive right.
13. The fact that that a prospective benefit is in certain cases to be
measured by or depends on antecedent facts does not necessarily make the
provision retrospective. In the same judgment, the Hon'ble High Court of
Calcutta, in the case of Piyali Dutta v. State of West Bengal and
Others reported in (2017 Cr.LJ 4041), held that that Section 357A is time
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neutral. It does not distinguish between victims of a crime happening before the
introduction of the section in the statute with those incidents of crime
happening post its introduction in the statute book . The section does not make
any distinction between victims on the basis of the time of occurrence of the
crime and also that, segregation on the basis of time, is unacceptable and
would militate against the right to equality and equal treatment by the State
guaranteed under the Constitution of India. Therefore, the petitioner and her
sister are entitled for compensation under the Section 357A(4) of Cr.P.C. and
Puducherry Victim Compensation Scheme for Women Victims / Survivors of
Sexual Assault / Other crimes, 2019. Further, the petitioner and her sister are
victims on the death of their mother. On one hand, children of deceased and on
the other hand, the children of the accused since their father murdered their
mother. Because of their mother's death, they are in street and no one is there to
look after them. Further, the wages paid to their father in the prison for his
work from 2009 to 2020 to the tune of Rs.3,01,125/- and after deduction of
Rs.1,75,800/- for Upkeep fund / victim fund / welfare fund, comes to
Rs.1,25,325/-. Therefore, the victim compensation fund was already deducted
from the salary of the accused. Hence, the claim of the petitioner cannot be
rejected on the ground of limitation.
14. This court, by interim order dated 04.08.2022, directed the second
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respondent to disburse the amount which was already deducted from the wages
of the convict in favour of the petitioner with accrued interest, if any. In order
to comply with the said direction, the petitioner was paid her share to the tune
of Rs.64,196/- by the cheque No.038945 dated 07.10.2023.
15. In view of the above discussions, this Court is of the considered
opinion that the provisions under Section 357A(1) (4) & (5) Cr.P.C. are
substantive in character. The petitioner and his sister Ashanthi are entitled for
victim compensation under Section 357A(4) of Cr.P.C. and the Puducherry
Victim Compensation Scheme for Women Victims / Survivors of Sexual Assault
/ Other crimes, 2019. Though amendment under Section 357A came into force
after the occurrence and the Puducherry Victim Compensation Scheme for
Women Victims / Survivors of Sexual Assault / Other crimes, 2019 came into
force from 07.02.2013 i.e. after the crime and are not given retrospective effect,
the compensation is ordered on the basis of antecedent fact.
16. Accordingly, this writ petition is allowed by passing the following
orders:
(a) The order bearing reference No.800/UTPLSA/2017-
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18 dated 3 / 4 -8-2017 issued by the third respondent is
quashed.
(b) Considering the age of the petitioner and her sister
and the loss of their mother's life, they are entitled for
compensation to the tune of Rs.10,00,000/-. Hence, the first
respondent is directed to pay compensation of Rs.10,00,000/-
(Rupees Ten Lakhs only) to the petitioner and her elder sister
proportionately.
(c ) The second respondent is directed to deduct the said
amount from the wages of the prisoner Abhi @ Abhimannan
Prakash S/o Palanisamy during his incarceration by invoking
clause 3 sub-clause 2, sub-clause (d) of the Puducherry Victim
Compensation Scheme for Women Victims / Survivors of Sexual
Assault / Other crimes, 2019.
There shall be no order as to costs.
27.11.2023
Index :Yes/No
Internet : Yes/No
Speaking order/non-speaking order
lok
To
1.Secretary,
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Union Territory of Puducherry
Home & Prison Department,
Puducherry – 605 001
2.The Chief Superintendent of Jail,
Central Prison,
Kalapet, Puducherry 605 014
3.The Member Secretary,
Union Territory of Puducherry
Legal Services Authority,
No.3, Lal Bahadur Shastri Street,
Puducherry 605 001
G.K.ILANTHIRAIYAN, J.
lok
https://www.mhc.tn.gov.in/judis
27.11.2023
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